Opinion
43978.
SUBMITTED OCTOBER 8, 1968.
DECIDED OCTOBER 25, 1968.
Action on account. Wilkes Superior Court. Before Judge Stevens.
Lawson E. Thompson, for appellant.
Robert E. Knox, for appellee.
The limitation for an action based on a written acknowledgment of an account is four years from the date of the writing.
SUBMITTED OCTOBER 8, 1968 — DECIDED OCTOBER 25, 1968.
The plaintiff appeals from a judgment dismissing his complaint which alleged that the defendant was indebted to him on an account, as follows: "Statement of Account Jackson Brothers Company. Dry goods, shoes, hardware, staple and fancy groceries. Tignall, Georgia, 12/31/62 Acct. Bal. — $747.95. Elmer Brown." The complaint was filed October 5, 1967. The defendant filed a motion to dismiss on the ground that the claim was barred by the statute of limitation.
The issue is whether the period of limitation for bringing the action was four or six years. Code § 3-705 provides: "All actions upon promissory notes, bills of exchange, or other simple contracts in writing shall be brought within six years after the same shall have become due and payable." Code § 3-706 provides: "All actions upon open account, or for the breach of any contract not under the hand of the party sought to be charged, or upon any implied assumpsit or undertaking, shall be brought within four years after the right of action shall have accrued."
The earliest decision that we have found on the period of limitation for an action based on a written acknowledgment of an account is Hicks Lord v. Thomas, 1 Dud. (Ga.) 218, which held that an action based on an acknowledgment of an open account by letter "was not barred, as by the Act of 1809" ( Code § 3-706) and was not barred until the expiration of six years.
The Georgia Code of 1863 included the statute of limitation contained in § 3-706 of the Code of 1933, supra (the Act of 1809 referred to in Hicks Lord v. Thomas, supra) and the statute of limitation contained in § 3-705 of the Code of 1933, supra. The Code of 1863 also included the provision contained in § 3-904 of the Code of 1933. "A new promise shall revive or extend the original liability; it shall not create a new one."
This legislative enactment superseded the decision in Hicks Lord v. Thomas, supra, as to the limitation for an action on a written acknowledgment of an account. When a new promise is given, the duration of the limitation is not determined by the nature of the new promise, but by the nature of the original obligation. Dawson v. Godkins, 28 Ga. 310; Webb v. Carter, 62 Ga. 415, 421. Accord Sinclair Refining Co. v. Scott, 60 Ga. App. 76 ( 2 S.E.2d 755); Martin v. Mayer, 63 Ga. App. 387, 407 ( 11 S.E.2d 218); Davis Shulman, Georgia Practice Procedure (3d Ed.) 478, § 29-20.
Judgment affirmed. Bell, P. J., and Quillian, J., concur.